Eleventh Circuit Court Of Appeals Upholds Convictions Of Doctor On Twenty Counts Of Healthcare Fraud
Tampa, Florida — United States Attorney Maria Chapa Lopez announces that the United States Court of Appeals for the Eleventh Circuit has upheld the convictions of Dr. David M. Pon on 20 counts of healthcare fraud. The Eleventh Circuit also rejected Pon’s challenges to his 121-month sentence.
According to evidence presented at his trial, Pon, an ophthalmologist, intentionally and fraudulently misdiagnosed hundreds of Medicare beneficiaries as suffering from wet macular degeneration, a degenerative and incurable eye disease. Pon then used his false diagnoses to bill the Medicare program for unnecessary diagnostic testing and unwarranted laser treatments. Several of the misdiagnosed patients testified and explained the significant emotional impact the false diagnosis had on their lives, including the fear of going blind as a result of the disease they supposedly had.
On appeal, Pon did not challenge the sufficiency of the evidence against him. He instead challenged the district court’s evidentiary rulings at trial. He argued that the district court should have allowed his expert to testify about a theoretical treatment method for wet macular degeneration. He also argued that the United States should not have been allowed to present rebuttal evidence showing that Pon had billed Medicare for performing services on a patient’s blind left eye, or, at a minimum, should have allowed him to respond more extensively to that evidence in surrebuttal.
The Court of Appeals upheld the district court’s ruling that Pon’s expert’s theory was unreliable, noting that even Pon’s expert recognized that his theory had not been scientifically tested and he had “not seen … clinical data” about it.
The Court of Appeals also ruled that the district court did not abuse its discretion in allowing the United States to present rebuttal evidence and that any error in limiting Pon’s surrebuttal was harmless beyond a reasonable doubt given the “overwhelming proof of Pon’s guilt.” (One judge dissented on this issue, disagreeing with the Court’s assessment that any error was harmless.) The Court observed that the United States had “presented the testimony of not one, but a dozen doctors about the patients listed in the indictment,” and the doctors “collectively had more than 330 years of experience.” The majority observed that “[n]one of those doctors could find any evidence that any of the eleven patients identified in the indictment had [wet macular degeneration] when Pon diagnosed them with it, and they all concluded that the patients did not have the telltale scars associated with the laser photocoagulation treatment that Pon had billed Medicare for performing on each patient.” The Court also noted the “strong evidence” that Pon had “incorrectly diagnosed and improperly ‘treated’ not just the eleven patients listed in the indictment but also hundreds of other patients.”
The Court of Appeals also rejected Pon’s challenges to his 121-month sentence. Specifically, the Court found that the district court’s finding that Pon’s crimes had caused a loss of almost $7 million was based on “reliable and specific evidence,” including a spreadsheet showing how much Medicare had paid Pon for thousands of claims and the “extensive testimony” of a Medicare-fraud investigator.
This case was investigated by United States Department of Health and Human Services, Office of Inspector General and the Federal Bureau of Investigation. Assistant United States Attorneys Michelle Thresher Taylor and David Rhodes represented the United States on appeal.